BILL ANALYSIS �
AB 37
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Date of Hearing: April 15, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 37 (Perea) - As Amended: March 18, 2013
SUBJECT : California Environmental Quality Act: record of
proceedings
SUMMARY : For certain projects and upon a project applicant's
request, authorizes a lead agency to prepare concurrently with
the administrative process the record of proceedings that would
be used in a judicial challenge to an agency's action or
decision under the California Environmental Quality Act (CEQA).
EXISTING LAW:
1)Requires a lead agency to prepare and certify the completion
of an environmental impact report (EIR) for a proposed project
that it finds would have a significant effect on the
environment, or if it finds otherwise, adopt a negative
declaration (ND), or mitigated negative declaration.
2)Authorizes a judicial challenge to an agency's act or decision
on the grounds of noncompliance with CEQA, including an
improper determination that a project is not subject to CEQA
or the failure to prepare an EIR for a project that has a
significant effect on the environment.
3)Establishes that a record of proceeding includes, but is not
limited to, all application materials, staff reports,
transcripts or minutes of public proceedings, notices, written
comments, and written correspondence prepared by or submitted
to the public agency regarding the proposed project.
4)Establishes a procedure for the preparation, certification,
and lodging of the record of proceedings. Specifically, the
law:
a) Requires a plaintiff or petitioner to file a request
that the respondent public agency prepare the record of
proceedings, and serve this request, together with the
complaint or petition, personally upon the public agency
within 10 days of the date the action or proceeding was
filed.
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b) Requires the respondent public agency to prepare and
certify the record of proceedings not later than 60 days
from the date that plaintiff or petitioner served the
request; lodge a copy of the certified record with the
court; and serve on the parties a notice that the record of
proceedings has been certified and lodged with the court.
c) Authorizes the plaintiff or petitioner to prepare the
record subject to certification by the respondent public
agency, or the parties to agree to an alternative method of
preparing the record of proceedings, within the time limits
specified in the law.
d) Requires the parties to pay any reasonable costs or fees
imposed for the preparation of the record of proceedings in
conformance with any law or rule of court.
e) Authorizes the plaintiff or petitioner to move the court
for sanctions, and the court to grant the plaintiff or
petitioner's motion for sanctions, if the public agency
fails to prepare and certify the record within the time
limits specified in the law.
THIS BILL :
1)Authorizes a lead agency to prepare the record of proceedings
for certain projects concurrently with the administrative
process, upon written request of a project applicant received
no later than 30 days after that lead agency makes a
determination pursuant to any of the following:
a) An EIR, ND or mitigated ND is required for a project.
b) The significant environmental effects specific to an
infill project were not described or are more significant
than originally described in a prior EIR.
c) A transit priority project, which meets specified
environmental and affordable housing criteria, is a
sustainable communities project pursuant to SB 375
(Steinberg, 2008).
2)In preparing the record of proceedings, requires a lead agency
to:
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a) Beginning with the date of the release of the draft
environmental document for certain projects, make all
documents and other materials that would be placed in the
record of proceedings available on and downloadable from a
website maintained by the lead agency, or provide a link on
the lead agency's website to another website containing the
materials.
b) Make available online to the public and in an accessible
electronic format:
i) The draft environmental document and all other
documents submitted to, cited by, or relied upon by the
lead agency in preparing the draft environmental
document.
ii) Any document prepared by the lead agency or
submitted by the applicant after the date of the release
of the draft environmental document that is part of a
record of the proceedings, within five business days
after the document is received or released by the lead
agency.
c) Encourage the submission of written comments on the
project in a readily accessible electronic format and make
any comment available to the public within five days of
receipt, unless the comment is submitted less than five
days prior to the decision on the project.
d) Convert written comments received in a non-electronic
format to a readily accessible electronic format within
seven business days of receipt, unless the comment is
submitted less than seven days prior to the decision on the
project.
e) Certify the record of proceedings within 30 days after
the filing of a notice of determination filed with the
Office of Planning and Research (OPR) or the county clerk.
3)Specifies that disclosure is not required for a trade secret,
the location of an archaeological site or sacred land, or any
other information subject to the disclosure restrictions in
the California Public Records Act.
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4)Requires the project applicant to reimburse the lead agency
for the costs incurred in complying with the above
requirements.
5)Applies the above requirements to the preparation of records
of proceedings for projects determined to be of statewide,
regional, or areawide environmental significance; infill
projects for which an EIR was certified for a city or county's
planning level decision; a project implementing a sustainable
communities strategy pursuant to SB 375; or any other project
for which the lead agency consents to prepare the record of
proceedings pursuant to the above requirements.
6)Sunsets the above requirements on January 1, 2017.
FISCAL EFFECT : Unknown
COMMENTS :
1)Background . Before approving a discretionary project, a lead
agency spearheads the following three-step environmental
review process under CEQA: first, establish that the proposal
is a "project" for the purposes of the law; second, determine
whether the proposed project is exempt from CEQA's
requirements; and third, identify any significant
environmental impacts caused by the project. If there are no
significant impacts, the lead agency may file a negative
declaration or mitigated negative declaration and approve the
project. Meanwhile, a finding of significant environmental
impacts triggers a lead agency's responsibility to prepare an
EIR that would analyze those impacts.
Over the course of the environmental review process, lead
agencies prepare notices of actions or decisions undertaken,
written statements of findings, and staff reports or
recommendations that are usually also subject to public
comment. These materials, which document the agency's
compliance with the CEQA process, later form the record of
proceedings used in CEQA challenges.
2)Expedited judicial review of CEQA cases . CEQA authorizes
judicial challenges to an agency's action or decision for
failure to comply with CEQA process. To ensure fair and
prompt resolution, both trial and appellate courts are
required by statute to give CEQA cases calendar preference in
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setting hearings or trials. CEQA cases are subject to
statutes of limitation as short as 30-35 days, depending on
the type of agency action challenged. Moreover, superior
courts sitting in jurisdictions with populations of over
200,000 residents are required to designate one or more judges
that would develop expertise in CEQA and related land-use or
environmental laws.
Courts rely on the record of proceedings to evaluate whether
an agency action or decision failed to comply with CEQA
process. Usually, a record is prepared after a CEQA case is
filed in court. In 2011, the Legislature enacted two bills
that authorized a lead agency to prepare and certify the
record of proceedings concurrently with the administrative
process and required the project applicant to reimburse the
lead agency for those costs. AB 900, the Jobs and Economic
Improvement Through Environmental Leadership Act of 2011,
applied to large-scale projects meeting extraordinary
environmental standards and providing significant jobs and
investment. SB 292 (Padilla) applied to a proposed downtown
Los Angeles football stadium and convention center achieving
specified traffic and air quality mitigations.
3)This bill would allow project applicants and lead agencies to
anticipate and prepare for CEQA litigation . Describing the
need for this bill, the author states that "(d)uring
legislative deliberations on (AB 900 and SB 292), all
stakeholders agreed that the opportunity to have the
administrative record prepared earlier than current law
required would expedite the judicial process. In fact, some
parties believe that preparation of the record delays judicial
review more than any other factor."
Litigants, especially project applicants who know or have good
reason to believe that their proposed developments may be
challenged in court, would primarily benefit from having a
record of proceedings prepared concurrently with the
administrative process. Having a record ready and available
upon the filing of a CEQA lawsuit would allow a court to set a
case for hearing at the soonest possible time. This could
reduce uncertainty and costs.
The general public would also benefit from the bill's
requirements to post CEQA notices, reports, environmental
documents, and public comments online. Especially for large
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and controversial projects, the ability to access information
about the project and the ongoing CEQA process would enrich
discussions and contribute to informed decision-making.
Project applicants would also reimburse lead agencies for the
costs they incur in complying with the online posting
requirements, reducing the burden for lead agencies.
The committee may wish to consider that the online posting
requirements could be duplicative of similar requirements in
other bills proposed during this session. AB 380 (Dickinson),
which this committee passed on April 1, 2013, requires OPR to
post online CEQA notices submitted by lead agencies.
4)Related legislation . This bill is substantially similar to SB
984 (Simitian, 2012), which was contingent on the enactment of
AB 1570 (Perea, 2012). Neither bill was enacted. This bill
would also amend similar sections and provisions as SB 617
(Evans), which is currently pending before the Senate
Environmental Quality Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
American Council of Engineering Companies, California
American Building Industry Association
American Planning Association, California Chapter
California Business Properties Association
California Chamber of Commerce
California Grocers Association
City of Fowler
City of Selma
Civil Justice Association of California
Opposition
None on file
Analysis Prepared by : Melissa Sayoc / NAT. RES. / (916)
319-2092
AB 37
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